Pay Equity Hearings Tribunal
0738-02 Canadian Union of Public Employees, Local 87 Applicant v. The Corporation of the City of Thunder Bay, Respondent
Before: Patricia E. DeGuire, Vice-Chair; Margaret Kvetan and Pauline R. Seville, Members
Appearances: Howard Matthews for the Applicant and Carolyn Kay for the City
Cite as: City of Thunder Bay (July 30, 2004) 0738-02 (P.E.H.T.)
DECISION OF THE TRIBUNAL, JULY 30, 2004
(The Tribunal issued an oral Decision on April 30, 2004)
INTRODUCTION
The Applicant, the Canadian Union of Public Employees (“CUPE”) is the bargaining agent for a bargaining unit consisting of full-time and part-time employees. The City is The Corporation of the City of Thunder Bay (the “City”). The employees in this bargaining unit work in a division in the City’s establishment called the Thunder Bay Animal Centre (“Animal Control”).
CUPE brings this Application to challenge a Review Officer order dated March 8, 2001. At Review Services CUPE had alleged that the City “[had] failed to implement the Pay Equity Plan at Animal Control,” posted on December 17, 1990, “according to its terms.” Specifically, CUPE claims that the City “has not paid [part-time] employees the rates provided in the Pay Equity Plan.”
The Review Officer ordered the parties to determine all part-time job classes; evaluate the new job classes and identify male comparators if required; amend the pay equity plan to include all required job classes; and pay any required adjustments retroactive to January 1, 1990, (the Order”).
The City asserts that CUPE and it had negotiated and agreed to a Pay Equity Plan for Animal Control, which was posted on December 17, 1990, (the “Plan”). However, it covered only full-time employees. The City states that it “has acknowledged its failure (shared jointly with CUPE) to include the part-time job classes in the Pay Equity Plan.” Accordingly, the City asks the Tribunal to confirm the Order and dismiss this Application.
CUPE adduced its oral and documentary evidence through Ms Judith Mongrain. The City did not call any evidence. At the end of CUPE’s case, the City brought a non-suit motion for a dismissal of the Application on the ground that CUPE had failed to establish a prima facie case. The City and CUPE made submissions concerning the motion for non-suit.
The Tribunal held these proceedings in Thunder Bay on April 28, 29 and 30, 2004. At the end of the proceedings, the Tribunal issued an oral decision dismissing the Application and confirming the Order. These are the Tribunal’s written Decision and Reasons.
ISSUE
The issue to be answered is whether the employer and the bargaining agent did negotiate, in good faith, and endeavoured to agree on a pay equity plan for Animal Control part-time employees as required by Pay Equity Act, R.S.O. 1990, c.P.7 as amended (the “Act”).
The crux of the matter before this panel is whether the parties had considered the part-time positions and decided on their job classes when they negotiated and agreed to the 1990 Pay Equity Plan. The answer to this question is based on several elements namely, the issue that was before Review Services; the statutory requirement for an employer and the bargaining agent set out in subsection 14(2) of the Act, the evidence or lack thereof and the submissions of both parties.
The issue that Review Services was asked to address is whether the City implemented the impugned pay equity plan according to its terms. Specifically, CUPE had claimed that the City failed to provide the Animal Control part-time employees the rates stipulated in the Pay Equity Plan.
The applicable provisions dealing with this issue are under subsections 1(1) – definition of “job class”; 14(2) and (3) – bargaining unit plans; and 14(5) – deemed approved. These subsections will be discussed more fully later in the analysis of these Reasons.
CUPE and the City agree that on December 17, 1990, the Plan was posted with pay equity adjustments effective January 1, 1990. No objections were made to the Plan after it was posted. Therefore, it is a deemed approved plan according to subsection 14(5) of the Act. The parties agree that the Plan covers full-time employees of Animal Control. The City does not agree that the Plan covers the part-time employees as well.
The City does not dispute that the full-time and part-time positions have similar educational qualifications. However, it contends that there are differences in recruitment; that the positions are in separate wage schedules; and therefore, based on the definition of job class under the Act, the full-time and part-time positions are separate job classes.
CUPE concedes that the full-time and part-time positions have separate compensation schedules and according to the Act, that requires separate job classes. However, it holds steadfast to its primary position that the Plan covers the full-time and part-time positions as a single job class. It contends that the Plan states that it covers “all” employees and neither the term full-time nor part-time is mentioned in the Plan. To support its position, CUPE asserts that full-time and part-time employees in the Clerk Dispatcher/Receptionist position were paid the same.
Based on those factors, the Tribunal advised the parties that the key question to be answered was whether the parties had met their statutory obligation to negotiate and agree upon a pay equity plan for part-time positions.
Judith Mongrain’s Evidence
CUPE’s only evidence relevant to this issue was put forward via Ms Mongrain. Below is a summary of the salient parts of her oral and documentary evidence. It had called Ms Oinennen to give evidence. However, a short while into direct evidence, CUPE concluded its examination-in-chief of this witness. The City did not cross-examine this witness. Ms Oinennen had worked at Animal Control in the capacity of full-time and part-time employee.
Ms Mongrain had worked for the City for over twenty-nine years. During that time, she held several positions with CUPE including Local President, first in 1985 and again from 1992 to the end of 2003, and Local Vice-President of the Union in 1989. However, she did not participate in the pay equity negotiations for Animal Control or the collective bargaining that immediately followed the pay equity negotiations. As Vice-President, she would be involved in the collective bargaining only if the Local’s President, Jules Tupker, was not present.
Mr. Tupker held the position as president from December 1990 until mid 1992, the relevant time for the pay equity negotiations. Ms Mongrain was his successor. Mr. Tupker became a national representative with CUPE and still held that position at the time of this hearing.
Ms Ilene Okerlund, another national representative of CUPE would have signed a collective agreement for the “sub units”, including Animal Control. Ms Okerlund ceased to be a national representative of CUPE in 1991. Mr. Howard Matthews replaced her from 1991 until his retirement in 2002. Mr. Matthews had signed-off on the collective agreement on behalf of CUPE, for the period January 1, 1991 to December 31, 1992. Mr. Matthews and J. Stewart, a member of Animal Control, had signed-off on the collective agreement on behalf of CUPE, for the term January 1, 1993 to December 1993.
Ms Mongrain asserts that in the collective bargaining for the period January 1, 1994 to December 31, 1995, the parties were successful in amalgamating three separate collective agreements for inside employees, outside employees, and Animal Control employees into one collective agreement. Several persons, including Ms Mongrain and a Mr. Caddo had signed-off on that collective agreement for the Union.
Ms Mongrain’s evidence is that the wage schedules in the 1989/90 collective agreement were separate for full-time and part-time employees before the implementation of pay equity. Specifically, Schedule “A” was for full-time employees and Schedule “B” was for part-time employees: (Exhibit 2). Exhibit 11 is part of CUPE’s documentary evidence, which Ms Mongrain identified as a memorandum dated January 10, 1991, signed by Alan Hjorth, the City’s Labour Relations Officer, with respect to the “1990 Pay Equity Increases.” The memorandum states verbatim:
Attached is a revised 1990 salary schedule outlining 1990 Pay Equity adjustments for the Animal Care Attendent [sic], Clerk Receptionist – Dispatcher and Jr. Clerk Receptionist – Dispatcher.
1991 Pay Equity adjustments will be forwarded shortly.
Commence using new rates on January 20, 1991, payable on the February 8 paycheque [sic].
Retro will be paid as soon as practicable thereafter.
Attached to Exhibit 11 are two pages entitled “Schedule “A” Full-time Employees 1990 Wage Schedule – Pay Equity Amendments” and “Schedule “B” Part-time Employees 1990 Wage Schedule – Pay Equity Amendments.” Similarly, Exhibit 12, excerpts from the 1991/92 collective agreement, shows two wage schedules for full-time and for part-time employees. It indicates, in part, “Pay Equity – January 1, 1991…The above January 1, 1991, rates will be amended as applicable agreed [sic] to the Pay Equity Plan.”
In direct evidence, counsel asked Ms Mongrain whether she agrees with the statement in Exhibit 13, a memorandum signed by Alan Hjorth dated December 13, 1991, that “Pay Equity has now been achieved.” She replied that in her opinion it had not been achieved for the part-time Clerk Receptionist/Dispatcher because the rate did not increase to match the Animal Control Officer position, which is a male dominated job class.
In cross-examination, Ms Mongrain states that she is not aware of anyone from the Union who had complained that pay equity had not been achieved. Her first opinion that the full-time and part-time employees should have received the same pay equity rate was during an arbitration process in 1998.
Forming part of Exhibit 13 are two distinct wage schedules entitled: “Schedule “A” Full-time Employees 1992 Wage Schedule – Pay Equity Amendments” and “Schedule “B” Part-time Employees 1992 Wage Schedule – Pay Equity Amendments.”
The 1994/95 collective agreement shows two wage schedules: “Schedule “B” Job Classification and Wage Rates Full-time Employees” and “Schedule “B” Job Classification and Wage Rates Part-time Employees.” (Exhibit 3).
In cross-examination, Ms Mongrain admits that before and after pay equity was implemented, there had been distinct full-time and part-time wage schedules in every collective agreement concerning Animal Control’s employees. In addition, she admits that, the City, in all of its documents, consistently has maintained different pay equity adjustments for the Animal Control full-time and part-time positions. Further, she admits that there had never been any objection about the two separate wage schedules in the collective agreement.
The City’s counsel asked Ms Mongrain whether there was anything the City had said or written that could indicate an agreement between it and CUPE to treat full-time and part-time positions the same. Her reply is that the only document was the Pay Equity Plan: Exhibit 1. Further, Ms Mongrain admits in cross-examination that she does not know who developed or negotiated the Plan.
The panel asked Ms Mongrain whether she had been a member of the Pay Equity Committee (the “Committee”) that had negotiated and agreed upon the Plan. Her response is that she was not a member of the Committee and had not participated in the negotiation and agreement of the Plan.
The Tribunal asked whether Ms Oinennen was a member of the Committee that had negotiated and agreed upon the Plan. It was informed that she was not. She had worked at Animal Control in the capacity of full-time and part-time employee.
Submissions on the Motion to Dismiss the Application
SUMMARY: the city’S POSITION
As noted above, the City brought a motion for a non-suit, at the end of CUPE’s case, seeking dismissal of the Application on the basis that CUPE had failed to establish a prima facie case against it on the central issue before the Tribunal. At that juncture, the Tribunal put counsel to her election on whether the City wished to call evidence. The Tribunal cautioned counsel that if the Tribunal dismisses the non-suit motion, the City will then be precluded from adducing evidence to raise a defence to its case. Counsel elected to call no evidence.
Specifically, the issue is, whether CUPE and the City had turned their minds to and had negotiated and agreed that the full-time and part-time positions in Animal Control were to be treated as one job class.
The City submits that although CUPE has argued that the Plan for Animal Control “was not implemented according to its terms,” it has failed to call any evidence to establish its position.
The City submits that the Act requires that where there is a bargaining unit, the bargaining agent and employer must negotiate and agree on a number of issues. The first and most fundamental matter to negotiate and agree on is the job classes in the bargaining unit. Only after that is done, can they go on to consider the other matters.
The Tribunal had asked CUPE “what terms [had] not [been] implemented”. It had framed the question, which CUPE has the onus to answer. CUPE was invited to call evidence about whether the parties specifically had agreed, that when they referred to job classes in the Plan, the full-time and part-time positions were captured.
The City submits that CUPE failed to call any evidence to answer that question in the affirmative. The evidence CUPE has called answers the question in the negative.
CUPE called no evidence on what the Committee did or discussed on the central issue of job classes. Mongrain’s evidence is that she did not know who the Committee members were and took no effort to inform herself on how pay equity was determined for the Animal Control group. Ms Oinennen was of no assistance on that issue.
CUPE has not called any member of the Committee. Nor did it call Mr. Tupker, the President of the local Union, the very person who signed-off on the Plan.
Ms Mongrain said that in early 1992, Mr. Tupker became a national representative for the Union, which he is still. “If the theory of the Applicant’s case is that the Committee had turned its mind to treat the full-time and part-time as one job class, who is best to call than the individual who arrived at that agreement?”
The City submits that the Tribunal is entitled to draw the adverse inference that CUPE’s evidence would not have supported its contention from CUPE’s failure to call any of those persons.
The City argues that it has no obligation to answer a case that was made against it and has not been met. It says it has no obligation to call someone from the Committee to rebut evidence that was not given because there is no evidence to rebut.
Further, the City submits that the sum total of CUPE’s case is Exhibit 1: the Plan. The phrase “covers all jobs under the jurisdiction of the Union” is the entirety of CUPE’s evidence. CUPE has asked the Tribunal to infer from that phrase that the parties had intended to include full-time and part-time positions. The City submits that the Tribunal cannot draw that inference from that phrase.
Counsel argues that Ms Mongrain has admitted that she cannot point to anything the City had said or had done over the decade she was the President of the Union, which denotes that the part-time and full-time employees were to be treated the same for pay equity purposes. The City argues that it is inappropriate for the panel to interpret the Plan. And, even assuming that the Tribunal can interpret the Plan, such interpretation is untenable on the face of the Plan and the evidence CUPE had adduced.
The City argues that the Plan acknowledges only the rates for the full-time employees, which existed at the time. The adjustments column identifies the amount to bring one full-time rate up to another full-time rate. The document does not tell us what adjustments have to be made for part-time employees. Part-time employees had different rates and did not receive benefits. So, of necessity, if the parties had intended to treat the full-time and part-time positions the same, there would have been recognition of and an agreement to those rates based on the necessary adjustments.
The City submits that the lack of a negotiated agreement is proven repeatedly by the differential wage in wage schedules, which the parties had negotiated and had signed-off on in every round of collective bargaining thereafter.
Counsel argues that the oral and documentary evidence have confirmed that the City has always treated part-time employees as being entitled to different pay equity adjustments from the full-time employees.
Further, counsel argues that it is inconceivable that the Local President, who signed the Plan, would not have objected to the wage schedules in subsequent collective agreements if truly, there had been a meeting of the minds that the part-time and full-time rates were to be the same for pay equity purposes.
The City submits that it is clear on the face of Exhibits 11, 12, 13, and as Mongrain had acknowledged in her evidence that the City thought of or treated the part-time employees differently from a pay equity perspective. Counsel submits that all the documentary evidence proves is that there was no common intention to treat them the same for pay equity. The City acknowledges it was wrong on how it dealt with the matter by using: “some sort of proportional value approach.”
Counsel argues that CUPE points to the job descriptions and the job postings, after the fact. However, it called no evidence on whether the Committee was aware of the job descriptions and similarities of the jobs. Regarding the wage schedules, Ms Mongrain has confirmed that the general increase agreed to at bargaining simply would be applied to the full-time and part-time schedules to maintain the differential between their job rates.
Further, Ms Mongrain has confirmed that the full-time and part-time positions were filled through different recruiting processes. Only the full-time positions were required to be posted and filled in accordance with the collective agreement restrictions of seniority and qualifications in job posting. Management had complete discretion in hiring for the part-time positions, subject only to the limitation that doing so did not result in the lay-off of full-time employees.
The City submits that in the recruitment process, there is a clear difference in management’s prerogative in selecting full-time and part-time employees. By statutory definitions and according to the Tribunal jurisprudence, as CUPE had conceded in its opening statement, the full-time and part-time positions must be separate job classes. Counsel cites (Wentworth County Board of Education (1990) 1 P.E.R. 132 to support this argument.
Finally, counsel submits that because the parties did not turn their minds to the part-time positions in the bargaining unit and CUPE has not presented evidence to prove otherwise, the requirements of the Act have not been met. Therefore, the Tribunal has no choice but to require the parties to go and do what the Review Officer ordered – negotiate and agree on the job classes. In the result, the City maintains that the Application should be dismissed.
SUMMARY: CUPE’S position
CUPE asserts that there is more than enough evidence to prove its claim. It says the primary complaint is that the Plan was not implemented according to its terms.
The Plan is not an agreement between the parties who signed it, “Anttila [O.N. Anttila, Manager – Human Resources] and Tupker,” but between the union and the employer. It can be taken as a given that both parties knew of their obligations under the Act. The Act provides that once the agreement is made between the union and the employer, it is deemed approved by the Commission. The employer’s position is that the Plan was intended to cover only the full-time jobs. It had recognised this only after the Union had sought assistance from Review Services. The City is asking the Tribunal to insert the term “full-time” in the Plan, and to interpret the Plan to mean “all jobs except part-time.” To adopt such an interpretation, the panel must amend the Plan. In its view, “all jobs mean all the jobs.”
CUPE submits that when the City argues that it was not its intention to cover part-time employees, there is no evidence before the Tribunal to support that interpretation other than the Plan itself. The City chose to not call evidence.
CUPE submits that the City has acknowledged its failure to include part-time jobs in the Plan. If their position were to be adopted, it would be an acknowledgement that the City has contravened the Act by failure to do pay equity for all the jobs in the bargaining unit. “That kind of violation is the most blatant of all the violations of the Act.” CUPE argues that “at the very least, it has succeeded in addressing the contravention of the Act.”
CUPE argues that the City has asked the Tribunal to draw a negative inference because it did not call Mr. Tupker to give evidence. He argues that there is no evidence that Mr. Tupker was involved in the negotiation of the Plan. Mr. Tupker’s signature is important because it binds the Union to the agreement. However, his signature indicates only that he agreed to the content of the document, which is no different from the Mayor or the City Clerk signing the document. Their signature does not indicate in any way whether they were involved in the negotiation.
CUPE argues that it is not proper to look at the intention of the parties. It argues that it is neither helpful nor admissible for even the chief negotiator to say what the parties intended a document to mean. It submits that extrinsic evidence of that type must not go to what the parties intended. Therefore, it is appropriate to bring evidence to say what the parties had agreed to, but that evidence must not go to whether the parties had a meeting of the minds and what they intended the document to mean. CUPE cites Brown and Beatty, “The Object of Construction: Intention of the Parties,” Canadian Labour Arbitration, 2nd ed. (Toronto: Canadian Law Book Limited, 1984), at 4:2100. It states that at the end of the day, the Tribunal should interpret the Plan and decide whether it was implemented according to its terms. To canvass Ms Mongrain’s opinion about what the agreement means is no more helpful that asking a clerk to interpret the meaning of the agreement. Further, it does not matter who negotiated the Plan; the parties are bound by it.
CUPE says it agrees completely with the City’s argument that one of the most fundamental issues is to identify the job classes in the bargaining unit. The parties did that exercise in section “D” of the Plan. There is no evidence whether there was any other place or document where the parties had agreed on what the classes were to be. If the employer wanted the jobs to be treated as two separate classes, it was incumbent on it to do that before the positions were rated.
CUPE argues that Wentworth, supra, supports its position that the job classes had to be determined before determining the job rates. Further, it says if the Tribunal agrees that the Plan intended to cover all the jobs, it does not matter if the Act requires the positions to be separate job classes. That issue needed to be sorted out before the Plan was implemented. Also, it takes the position that even if what the parties did was “illegal”, they did it. The usefulness of Wentworth, supra, is that the parties ought to have sorted out the job classes before the Plan was implemented.
CUPE reiterates that the Plan says it covers “all jobs. So on its face, all jobs mean all jobs.” In the collective agreement, Exhibit 2, the parties’ agreement states what the jobs are. That was agreed upon before pay equity was implemented. Other important evidence up to the point when the Plan was implemented are Exhibits 4, 5 and 6, which are the job descriptions. It argues that the uncontradicted evidence is that the job descriptions applied equally to full-time and part-time jobs. Exhibit 7, 8 and 9 are postings derived from the same job descriptions. Exhibit 7 is a part-time job. Ms Mongrain’s evidence is that she had cross-referenced it to the job description and it is “virtually identical in content” with the full-time job description except for minor differences. Exhibit 8 is for a full-time job; and the same is true: both Exhibits 7 and 8 are job descriptions and are identical in content.
Therefore, whether one can make a legal argument that the parties should have treated the full-time and part-time positions as separate job classes, it makes sense that if they are identical, the parties should treat them as one job class.
CUPE states that the remedy it seeks is to have the part-time jobs receive the same pay as the male-dominated full-time officer job. That makes sense and is consistent with the purpose of the Act, which is to address systemic discrimination.
CUPE argues that the only evidence in support of the City’s position is page 2 of the Plan, Exhibit 1: the salaries listed – specifically, the rate of pay for the Animal Care Attendant, which is the full-time rate. But, instead of concluding that the parties intended to exclude the part-time positions, it is more logical to conclude that the parties had omitted to insert the part-time rate for the Animal Control Attendants. To so conclude, would deny only the part-time Animal Care Attendants of pay equity. That would not be the same result for the Clerk Receptionist/Dispatcher because the rate of pay was the same for the full-time and part-time jobs.
CUPE submits that it has made out a prima facie case up to December 17, 1990. The Plan was signed December 6, 1990 and posted December 17, 1990. However, it takes the position that the Plan was not implemented according to its terms. It asks the Tribunal to analyse the question in two steps: (i) was the Plan implemented for part-time employees? If the Tribunal answers yes to the question, it rejects the employer’s response. For if the employer implemented the Plan in any way for part-time employees, its actions refute the City’s claim that the Plan was not intended to include part-time employees; and (ii) if so, was the Plan implemented according to its terms?
CUPE argues that the first of three pay equity instalments was made in January 1991. Hjorth names the position just as the Plan does; the salary schedules are for full-time and part-time employees: (Exhibit 11). Further, a comparison of Exhibit 2, the 1989/90 collective agreement’s wage schedule for full-time and part-time employees, to Exhibit 11 indicates that both deal with the 1990 rates that are set out in the Plan.
CUPE asks: “If there was any intention that part-time jobs were not to be covered, where on earth did [the City] get the authority to give them pay equity raises?” It concluded that the authority was derived only from the Plan. “If all we are dealing with is the clerk’s job, our case is a slam dunk.” It asserts that within a month the City had applied it to the part-time employees. Having done so, that refutes the City’s position that the Plan was not intended to apply to part-time positions.
The wage schedules for full-time and part-time employees in the 1991/92 collective agreement refers to the Plan: (Exhibit 12). It states that “[t]he above January 1, 1991, rates will be amended as applicable agreed [sic] to the Pay Equity Plan.” Exhibit 13, a memorandum from the employer dated December 13, 1991, regarding 1992 pay equity rates, states that “Pay Equity has now been achieved.” At this juncture, the Officer and the Attendant are now combined. The employer “invented” the rate - $13.10. “The Plan provided that the part-time [rate] be brought up to the same as the full-time [rate]: $14.94.”
CUPE asserts that for the “first time, rates dropped relative to the full-time.” The part-time employees never got the 1992 pay equity adjustment. Further, it argues that the City has not called any evidence to establish its justification to give the part-time clerk pay equity adjustments. If one looks at the part-time clerk job, in the first two years, the pay equity adjustments were the same, but in the third year, the adjustment was not as provided by the Plan.
On the argument that the Union had agreed to the part-time rates in subsequent collective agreements, the Plan supersedes the collective agreement. If the parties agreed to rates that were not according to the Plan, then they have violated the Act and the Plan governs: subsection 13(9), (10), (11) and (12). CUPE asks that the clerk rate be brought up to the full-time officer rate retroactive from January 1990 as the employer had agreed. If the Tribunal agrees with the City and not the Union, it should “revert back to the Review Officer’s Order.”
The City’S Reply
In reply, counsel submits the Plan is not an agreement between the two signatories and there is no analogy between the Plan and a collective agreement. Counsel points out that there is a flaw in CUPE’s argument in that the role of this Tribunal and that of an arbitration board is fundamentally different. Therein lies the flaw in CUPE’s approach. This proceeding is a non-suit and not the interpretation of a collective agreement. Therefore, the passages cited from Brown and Beatty, supra, are not useful.
Counsel submits the Labour Relations Act specifically defines an arbitrator’s jurisdiction. An arbitrator cannot amend or vary a collective agreement. Therefore, it is not surprising that parties argue about the interpretation of the language in a collective agreement. Jurisprudence and Brown and Beatty are clear that an arbitrator does not go behind the actual words in a collective agreement or he or she cannot admit extrinsic evidence and bargaining history unless a party convinces the arbitrator that there is a latent ambiguity.
Counsel argues that the Tribunal does “not sit to interpret a Plan.” The Tribunal’s jurisdiction is to ensure that what the parties agreed to meets the legislative requirements. In doing so, the Tribunal is obliged to amend a plan if the statutory requirements are not met.
Counsel submits that in the grievance/arbitration process, the persons who “bargained the language” are not called to give evidence. This is not the same in a pay equity proceeding. Counsel refutes the view that Mr. Tupker’s opinion would not have been useful to the Tribunal. She further argues that although CUPE states that there is no evidence that Mr. Tupker was involved in the negotiations concerning the Plan, there is also no evidence that he was not.
In addition, counsel asks that when CUPE says that the City did not intend to include part-time employees, where is its evidence to demonstrate otherwise? Where is the evidence that the employer and the union had a meeting of the minds to consider full-time and part-time employees the same? Where’s the evidence of the Union’s intention?
Counsel argues that it is not helpful for CUPE to say that the Plan speaks for itself, and therefore, if the City did not comply with the Act it is stuck with the Plan. She asserts that the Tribunal’s jurisprudence indicates that even when a plan is deemed approved it can be challenged, in hindsight, if either party realises that what was agreed to did not meet the requirements of the Act. “That is why there is a complaint process in Act: to go back and remedy what was omitted accidentally or deliberately.”
The City argues that statutory definitions determine what is a proper job class. In the negotiation process, there is no discretion in determining the job classes. The parties must comply with the statutory definitions. Counsel cites Wentworth, supra, to support that proposition. In this case, only “two of the four statutory criteria are present” in the part-time positions. Therefore, the part-time positions are a separate job class.
CUPE says the signature only indicates that there is agreement to content. Counsel argues that although CUPE says that the document is what matters at end of day, we do not know that.” CUPE “misunderstands completely the role of the Tribunal.”
Counsel argues that CUPE has not adduced any evidence about who negotiated for pay equity. CUPE has the onus to establish a prima facie case. It has not done so and that is the reason for this motion.
CUPE has stated that Exhibit 2 shows that immediately before the Plan there was a signed document on what job classes were. However, the Tribunal does not know who signed that document relative to who might have signed the Plan. That is because there is no evidence before the Tribunal about what the Committee knew about wage schedules and job descriptions.
CUPE has argued that the job descriptions apply to full-time and part-time positions. But, it presented no evidence whether the Committee knew about the job descriptions or whether the Committee knew there were part-time positions. As well, concerning the job postings, Ms Mongrain gave evidence that job postings were not required for part-time positions before and then only for those that required a work-period in excess of 85 days. However, no evidence was adduced to show that postings existed in the early 1990s or that the Committee was aware of their existence or considered them.
Counsel further argues that although CUPE has argued that the parties knew what all the positions were, there is no evidence before the Tribunal that the parties who negotiated the Plan knew what all the positions were. Specifically, the rate for the part-time Clerk position was not at issue before Review Services. The parties focused on other positions. No one had turned her or his mind to the Clerk position.
At Review Services the focus was on whether the parties considered the part-time positions. CUPE has indicated the rate for the part-time Clerk and the wage schedule, and has argued that for the first two years the full-time and part-time rates were the same. It has invited the Tribunal to accept that as proof that the parties had intended to treat both positions the same. However, it has failed to tell the Tribunal that before the Plan was implemented, there was no difference in the full-time and part-time rates; that there was an 82% difference only in the other two jobs.
The City concludes “that maybe if the parties had turned their minds to consider the part-time positions, they could have been treated the same” as the full-time positions. Counsel submits that the Plan is deficient. The parties did not take into account the existence of the part-time positions in this bargaining unit. Even if there were a meeting of the minds, the Plan does not comply with the Act, the Tribunal cannot require one to comply with the Plan.
Finally, counsel for the City submits that CUPE has failed to meet the burden of proof. Therefore, she requests that the Tribunal dismiss the Application “or alternatively, confirm the Review Officer’s Order.”
ANALYSIS
THE LAW
To achieve the objectives and purpose of pay equity, the Act sets out a mandatory scheme with a complement of minimum criteria. Those standards must be applied either correctly or reasonably.
The Tribunal’s jurisprudence states that the requirements under Part I of the Act are mandatory and ought to be applied correctly. The key provision of the Act that is relevant to the issue in this matter falls under Part I.
The crux of CUPE’s allegation necessarily leads to the allegation that the employer and the bargaining agent had failed to comply with a mandatory requirement of Part I of the Act. In enquiring into the issue, the Tribunal will look at the actual conduct of the parties and the intention of the parties as conveyed in the language of the Plan. In determining the issue, the Tribunal shall adopt a standard of correctness.
It is clear from the scheme of the Act that certain actions must be done before a pay equity plan can be negotiated and agreed upon or implemented.
In the instant case, several provisions of the Act apply in the determination of the issue. First, subsection 14(2) and (3) requires
The employer and the bargaining agent for a bargaining unit shall negotiate in good faith and endeavour to agree, before the mandatory posting date, on,
(a) the gender-neutral comparison system used for the purposes of section 12; and
(b) a pay equity plan for the bargaining unit.
As part of the negotiations required by subsection (2), the employer and the bargaining agent may agree, for the purposes of the pay equity plan,
(b) that a job class is a female job class or a male job class. (Emphasis added).
Clearly, that section imposes a positive obligation on both parties to engage in negotiations, attain an agreement on the content of the pay equity plan before composing it. Then, upon composing the plan, both must “execute” it before posting it in the workplace.
However, before embarking on those exercises, it is incumbent on the employer and the bargaining agent to determine the job classes in an establishment. Integral to that exercise, they must, in good faith, decide and agree on which positions must be placed in the same job class.
To determine a job class, the Act sets out four elements that must be met. To be in the same job class, positions must (i) have similar duties and responsibilities; (ii) require similar qualifications; (iii) be filled by similar recruiting procedures; and (iv) have the same compensation schedule, salary grade or range of salary rates. Those elements are found in subsection 1(1), which exhaustively defines the term job class:
“job class" means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates. (Emphasis added).
By necessary implication, all positions in the same job class must have all four criteria. In other words, a position that has two of the four criteria cannot be placed in the same job class with a position that has all four criteria.
There is no provision in the Act, expressed or implied, that allows the employer and the bargaining agent to modify the constituent parts of the definition of job class to classify positions. These standards must be applied correctly. However, the employer and the bargaining agent may be able to negotiate and agree to adopt the four criteria to a position. In admitting that the Plan (with respect to Animal Control employees) is “deficient,” counsel for the City concludes “that maybe if the parties had turned their minds to consider the part-time positions, they could have been treated the same.”
To determine a job class, the employer and the bargaining agent actively must look at the positions in the establishment and determine whether all four elements are present. Determining a job class and deciding or agreeing whether a job class is male or female are two distinct processes.
By comparison, only after the employer and the bargaining agent have classified all the positions in their establishment into job classes, can they go on to use the discretion conferred on them under subsection 14(3) to decide or agree to call a job class female or male.
Where either the employer or the bargaining agent complains that there was no mutual agreement in determining whether a position should have been placed in a job class, the Tribunal must hear evidence to determine whether the employer and the bargaining agent did follow the requirements of the Act, and whether the contents of the plan meet the requirements of the Act.
In the instant case, there was no mutual agreement that the full-time positions were to be treated the same as the part-time positions. CUPE says that was the intention of the parties. The City argues it was not. Essentially, either party is contending that there was no mutual agreement that the part-time positions in Animal Control were to be placed in the same job class as the full-time positions.
The parties agree that the Plan covers full-time employees of Animal Control. CUPE concedes that the full-time and part-time positions have separate compensation schedules. The City contends, which is not refuted by CUPE, that the full-time and part-time positons have different recruitment methods. Simply put, in determining the job classes, when one compares the full-time positions to the part-time positions,only two of the four mandatory criteria are present in both.
As noted above, if all the elements concerning positions are not present, they cannot be placed in the same job class. In this case, the parties’ concessions or lack thereof lead to one conclusion, that is, the full-time and part-time positions do not belong in the same job class.
Based on the parties’ admissions expressly or tacitly, for the full-time and part-time positions to have been placed in the same job class, the employer and the bargaining agent would have had to negotiate and agree that the compensation schedules and recruitment methods would be the same. The Tribunal finds that had not occurred.
There is evidence before the Tribunal that before and after the implementation of pay equity, there were two separate compensation schedules. However, there is no evidence before the Tribunal that the parties had agreed to bring the recruitment and compensation schedules for the part-time positons in line with the full-time positions. The evidence adduced by CUPE indicates that different compensation schedules and recruitment methods continued after pay equity was implemented.
Thus, since there is no discretion in the Act to classify postions in the same job classes if any of those elements are missing, and, based on both parties’ admissions, the Tribunal finds that they have failed to comply with the most fundamental requirement of the Act with respect to the part-time Animal Control employees. Specifically, the parties have failed to negotiate and agree on the job classes for the part-time positions in Animal Control. The Tribunal’s conclusion is supported by CUPE’s evidence.
Specifically, Ms Mongrain’s evidence is that before and after pay equity was implemented, there had been distinct full-time and part-time wage schedules in every collective agreement concerning Animal Control employees. She states that in all of its documents, the City consistently had maintained different pay equity adjustments for the Animal Control full-time and part-time positions. Ms Mongrain’s documentary evidence, specifically Exhibits 2, 3, 11, 12 and 13, buttresses her oral evidence.
Further, Ms Mongrain admits that there had never been any objection about the two separate wage schedules in the collective agreement. Ms. Mongrain’s evidence is that she is not aware that anyone from the Union had complained that pay equity had not been achieved. Her first opinion that the full-time and part-time employees should get the same pay equity rate was during an arbitration process in 1998.
As noted in Ms Mongrain’s evidence, she had worked for the City for over twenty-nine years. During that time, she had held several positions in the Union, including local president and vice-president before and after pay equity was implemented. Indeed, Ms Morgrain was not a member of the Committee that had negotiated and agreed upon, and executed the Plan. However, the Tribunal finds that she was in a senior position and should have known or ought to have had knowledge of the matters concerning the collective agreement and pay equity.
It is indeed a curious thing that in the several consecutive rounds of collective bargaining that had occurred after the Plan had been posted, the Union failed to notice what it now poses as a marked discrepancy in the implementation of the Plan.
On its face, the Plan states that it covers all employees under the jurisdiction of the bargaining agent. However, the Plan is not useful to the Tribunal in determining the issue before it. It is enough to acknowledge that the Plan is deemed approved consistent with subsection 14(5) of the Act.
Based on the evidence and the parties’ submissions, the Tribunal finds that the employer and the bargaining agent have contravened the Act.
In the result, the Tribunal finds that CUPE has failed to make out a prima facie case that the City had failed to implement the Plan according to its terms. In addition, the Tribunal dismisses CUPE’s Application and grants the motion for non-suit.
Accordingly, the Tribunal orders that the Review Services Order dated March 8, 2001, be confirmed. The Tribunal directs the employer and the bargaining agent to negotiate, in good faith, to :
(a) determine all part-time job classes;
(b) evaluate the new job classes and identitfy male comparators if required;
(c) amend the pay equity plan to include all required job classes; and
(d) pay any required adjustments retroactive to January 1, 1990.
- Regarding the first component of the Order, the Tribunal explains to the parties that “to determine all part-time job classes,” the parties must comply with the mechanism the Act sets out. Specifically, the City and CUPE must negotiate, in good faith, and agree on all the job classes with respect to all part-time positions.
Dated at Toronto, Ontario this 30th day of July, 2004.
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Patricia E. DeGuire, Vice-Chair
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Margaret Kvetan, Member
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Pauline R. Seville, Member